Massage sex restrictions upheld by B.C. Appeal Court

In a case closely watched byhealthcare regulators, B.C.'s Court of Appeal has sided with a decision by the province'scollege of massage therapists to restrict the practice of alicensee based solely onunfounded allegations of sexual misconduct.

• Massage sex complaint case tests health care regulators

The college placed specialconditions on Trevor Scottin the days after a female patient came forwardto claimshe heard the Prince George massage therapist masturbatingduring a session in October 2014.

Scott hassince denied the claims, butbefore even hearing his side of the story,the college'sinquirycommittee decided to take action "necessary to protect the public" pending a full hearing of the complaint.

A test of limits

The case is seen as a test of the limits of the bodies which govern health care practitioners through Section 35 of B.C.'s Health Professions Act.

The legislation gives more thantwo dozen professional colleges and organizationsthe right to issue interim orders against registrants pending the outcome of a disciplinaryhearing.

The question in front of the court: What should the standard for suspension or restriction be?

The woman claimed she heard Scott unzip his pants and felt his penis touch her draped arm, but didn't see anything because she was lying face down on a massage table.

Scott claims he was forced to massage the woman with one hand because he was shielding himself from her strong body odour with his other arm.

The complainantalso went to theRCMPbut told them she didn't want him charged or contacted.

Scott won a judicial review of the initial order in B.C. Supreme Court where he argued the order requiring him to have a chaperone for female patients and to publicize the restrictions could have "career destroying" consequences.

The Supreme Court judge questioned the plausibility of the woman's story and noted that the complaint was based on what she "heard and felt, not what she saw."

'Is action necessary?' vs 'Did he do it?'

In the Court of Appeal decision,Chief Justice Robert Baumansaid the inquiry committee should have tried to ensure that Scott had a reasonable opportunity to attend the hearing where the conditions were imposed.

But Baumansaid the inquiry committee wasn't supposed to decide the facts; their job was to decide onlyif a prima faciecase existed tosupportthe allegations, and whether the nature of the claims warranted immediate action.

"Its task, as characterized by the committee at bar, is to make 'a provisional assessment of the facts' to consider the reliability of the evidence, its internal and external consistency, the plausibility of the complaint and motivation," wroteBauman, speaking for the other two judges.

"This is in aid of determining whether the complaint is manifestly unfounded or manifestly exaggerated."

The inquiry committee is made up of a different group ofexperts to the disciplinary committeewhich will ultimately hear the fullcase.

"In the context of this case, the final question for the discipline committee is: 'Did the therapist do it?,"Baumanwrote.

"And the question before the ... inquiry committee: 'Is action necessary to protect the public in the interim?"

Baumanfaulted the Supreme Court judge who quashed the original order for "weighing the evidence" to determine if it was sufficient to find Scott had engaged in sexual misconduct.

'The best way to protect women'

The College of Physicians and Surgeons was an intervenor in the case, along withthe West Coast Women's Legal and Education Fund (LEAF).

They argued that the Supreme Court judge shouldn't have faulted the complainant for not looking at Scott during the alleged misconduct.

West Coast LEAF director of litigationRajiMangat issued a statement praising the appeal court decision.

"We are pleased that the court found that women's allegations of sexual misconduct must be taken seriously,"Mangat wrote.

"Women are disproportionately the victims of sexual assault. Therefore, allowing the bodies we trust to govern healthcare professions to place interim restrictions on healthcare practitioners while an investigation is conducted is the best way to protect women and ensure equal and safe access to healthcare."

The Registered Massage Therapists' Association of B.C. also intervened, agreeing with Scott's contention that the rules would "allow a health college to 'inflict grievous reputational and financial harmon a health professional on the basis of one, unproven, unsworn, untested complaint."

Scott is married and has no history of misconduct and no criminal record. He has had no other complaints made against him. His lawyer argued that the basic details of the woman's story are implausible.